Comments on: Minority Pre-Tort

By: matt

matt — Fri, 25 Jul 2008 13:49:32 +0000

ajay- I can’t say for sure about British law (though I suspect it’s like US law here) but under US law, the law extends beyond borders. So, if a US citizen goes to the UK and kills someone there he can be prosecuted in the US for this. Or, if a person in the UK kills an American, US law also applies. I’m fairly sure, though less confident, that similar things apply even if no American is involved. The issue here isn’t of the reach of the law but rather of the jurisdiction of a court, something related but not the same. The rules for civil actions (torts, contracts, etc.) are similar but somewhat different. In general, though, it’s not at all unusual for law to have extra-territorial effect.

By: mrhyde

mrhyde — Fri, 25 Jul 2008 10:40:15 +0000

Section 9 of the Offences Against the Person Act 1861 gives the courts in the UK jurisdiction over homicide committed by “any subject of her majesty” outside the UK, meaning that the UK courts would be able to try our hypothetical secret agent absent immunity granted under the Intelligence Services Act. I don’t think the question of what effect such a immunity would have on extradition has come up, although extradition might be avoided as the conduct would perhaps fail to satisfy the double criminality requirement as the immunity would mean that the actions were not a crime in the UK.

By: abb1

abb1 — Fri, 25 Jul 2008 08:31:23 +0000

Well, it says “grant immunity from British prosecution“, not extradition. Of course this is wikipedia, take it for what it’s worth.

By: Dave

Dave — Fri, 25 Jul 2008 08:06:40 +0000

@19, there are, I believe, such things as ‘crimes of universal jurisdiction’. If, however, MI6 are committing any of these, we really are in the sh1t. I think the key point here is that, in the unlikely event of a country seeking to extradite a British spy for putting a cap in the local Blofeld, the Act renders that impossible.

By: Jeff Rubard

Jeff Rubard — Thu, 24 Jul 2008 12:02:36 +0000

And you thought that Republican science fiction was all about Intelligent Design.

John, you know a Democrat is just someone who hasn’t figured out the Republicans killed JFK and tried to pin it on Cuba.

By: ajay

ajay — Thu, 24 Jul 2008 09:58:26 +0000

In Britain, the Intelligence Services Act 1994 authorizes the secretary of state to grant immunity from British prosecution to personnel when they engage in any acts abroad that would be illegal under British law, such as murder.

But surely if the acts were committed abroad, they wouldn’t come under British law anyway? If I go to the US and shoot someone, I can be prosecuted under US law, but I can’t be prosecuted for murder in Britain; I can only be extradited.

By: John Holbo

John Holbo — Thu, 24 Jul 2008 07:56:43 +0000

Yes, clearly I’m in the wrong here. Tort. Quite right.

But in my defense, my (obviously ridiculous) thought about prepardon was that, assuming that you have a pool of precogs seeing events ‘from the point of view of eternity’ – unable even to distinguish past from future: ‘is it now’? – then the concept of crimes that have happened, vs. ones that will happen but haven’t happened yet – becomes problematized.

By: John Quiggin

John Quiggin — Thu, 24 Jul 2008 07:04:28 +0000

“The President cannot pardon by anticipation, otherwise he would be invested with the power to dispense with the laws,”

I thought that it was a matter of consensus among serious Washington thinkers that the Commander-in-Chief (let’s give him his proper title) has this power for the duration of the current unpleasantness, and has properly exercised it. The problems discussed here only seem to arise because of the unaccountable tradition of changing Commanders every eight years.

By: Mike Otsuka

Mike Otsuka — Thu, 24 Jul 2008 05:45:28 +0000

In other words, the title was meant to be pun-ish, but it failed because it didn’t involve punish-ment.

By: Mike Otsuka

Mike Otsuka — Thu, 24 Jul 2008 05:35:18 +0000

Unfortunately, the title of the post, no matter how difficult to execute, should be disqualified for making the wrong move, since the President’s power of pardon doesn’t apply to torts, not even post-tort.

On a somewhat different point, it’s odd that Ford pardoned Nixon for crimes he ‘may have committed’ in addition to crimes he ‘has committed’. It’s as if he’s a modal realist who thinks he has sovereignty over merely possible worlds. I suppose the real explanation is more mundane: Ford didn’t want his pardoning statement to imply that Nixon had actually committed any crimes. What he meant to say is that his pardon covers all crimes Nixon has committed, if he has committed any.

By: John Holbo

John Holbo — Thu, 24 Jul 2008 02:32:44 +0000

I should clarify. I didn’t really think that the President could do this. I was just too in love with the post title. (Thanks, Jacob!)

By: bdbd

bdbd — Wed, 23 Jul 2008 23:15:42 +0000

the crimes have already occurred—different from Dick (Minority Report)

By: prh

prh — Wed, 23 Jul 2008 21:30:50 +0000

“At which point he will get away with it because this is the type of political question that the courts don’t like to address.”

The question could only come up if the person were criminally prosecuted and presented the purported pardon as a defense to the charge. The court would have to allow the defense or deny it. Either way, the court would be ruling on the validity of the pardon.

By: Jacob T. Levy

Jacob T. Levy — Wed, 23 Jul 2008 20:30:06 +0000

Yeah, I think John’s off-base here—pardons can clearly come before prosecution and must clearly come after commission.

But he still wins, for the double-axle-pun-with-a-twist title.

By: Dave

Dave — Wed, 23 Jul 2008 18:03:01 +0000

Is there really anyone out there who would put this past the SOB? Can’t you just see the scene on the day of BHO’s inauguration, as a line of shady operative walks out of the White House, waving signed confessions to war crimes, and signed pardons right along with them?